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Reese v. Maine Department of Corrections

Superior Court of Maine, Kennebec

February 28, 2019


          Plaintiff's Attorney Geoffrey Reese, ProSe.

          Defendant's Attorney Jim Fortin, AAG.




         The matter before the court is an appeal by Geoffrey Reese, an inmate at the Maine State Prison, from the Commissioner's denial of his grievance that upheld the refusal to allow him to possess, within the prison, a single photograph that appears to depict a woman in a nightclub or bar holding an alcoholic beverage. This appeal has been brought in accordance with 5 M.R.S. §§11001-11008 (Administrative Procedure Act) and M.R.Civ, P. 80C.


         On October 24, 2017, Reese was notified in writing that a piece of mail addressed to him from T. Soloman and consisting of" 1 personal photo" was not being forwarded to him because it "depicts or describes the use or manufacture of. . . alcoholic substances . . . ." (Administrative Record, hereinafter A.R. at 2). On October 30, 2017, Reese utilized the Prisoner Grievance Procedure to complain that the photograph should not have been withheld from him because: (1) it was merely an assumption that the beverage in the photograph was alcoholic, and; (2) the mail policy prohibiting material that depicts alcohol is invalid. A.R. at 1. Informal resolution of the grievance was unsuccessful, with the prison staff member stating: "Picture is taken in a bar setting of more likely than not a mixed drink." Id.

         Reese pursued appeals at all levels of the grievance process, and at all levels his grievance was denied including the final denial by the Commissioner on January 16, 2018. (A.R. at 7). On February 16, 2018, Reese filed a Petition for Judicial Review. On May 7, 2018, he sent a letter addressed to the clerk of this court and enclosed what appears to be the original of an MDOC "Prisoner Property Contraband Disposition Form" dated October 24, 2017. The form described the contraband article as "1 personal photo - Not Allowed - Alcohol." Stapled to this form was the original of the photograph in question. The photograph depicts a man (who the court presumes is Mr. Reese) with his arms around two women on either side of him. The woman on his left (to the right of the photo) is holding, in her left hand, a cell phone and a beverage in a glass with a black straw. The setting of the photograph appears to be a nightclub or bar.

         In his letter to the Clerk, Reese explained that he was not allowed to possess the photograph and MDOC would not maintain custody of it, so he decided to send it to the court so that it could be included with the administrative record on appeal.[1]Subsequently, Reese filed a number of procedural motions, including a motion to amend his petition/complaint. The court denied that motion on October 22, 2018.

         The Department of Corrections has adopted a policy governing prisoner communication, including the receipt of mail from outside the prison. See Policy No. 21.2 (2-29-2016 revision). Section VI, Procedure E (2) addresses the subject of prohibited materials. Procedure E (2)(d) provides:

Publications and other materials, including correspondence, sent to prisoners are prohibited if they contain any of the following: d. material that depicts or describes the use or manufacture of drugs, alcoholic substances, firearms, explosives, or other weapons, keys or other security devices, or skills, implements, or other information which could reasonably be used to effect escape or cause harm or injury to persons or property.

         As noted above, at the informal resolution stage of the grievance procedure the property manager/media review officer (Gary Waltz) relied upon the policy quoted above to withhold the photograph from the Petitioner. Reese argued that it was merely an assumption that the beverage held by the woman in the photo was alcoholic. Moreover, he claimed that alcohol is a legal substance outside the prison and, therefore, photographic images of something that is legal to possess and consume should not be prohibited inside the prison. (A.R. at 1). The property manager disagreed and found that the photo was taken at a bar or similar venue, and it was more likely than not that the beverage was alcoholic. Id. The grievance review officer at Level I agreed that the photo "depicted alcoholic beverages, and by MDOC policy they are not allowed."[2] (A.R. at 3).


         The Law Court has frequently reaffirmed the principle that judicial review of administrative agency decisions is "deferential and limited." Passadumkeag Mountain Friends v. Bd. of Envtl. Prot.,2014 ME 116, ¶ 12, 102 A.3d 1181 (quoting Friends of Lincoln Lakes v. Bd. of Envtl. Prot.,2010 ME 18, ¶ 12, 989 A.2d 1128). The court is not permitted to overturn an agency's decision "unless it: violates the Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or error of law; or is unsupported by the evidence in the record." Kroger v Departmental of Environmental Protection.2005 ME. 50, ¶ 7, 870 A.2d 566. The party seeking to vacate a state agency decision has the burden of persuasion on appeal. Anderson v Maine Public Employees Retirement System.2009 ME. 134, JJ 3, 985 A.2d 501. In particular, a party seeking to overturn an agency's decision bears the burden of showing that "no competent evidence" supports it. Stein v. Me. Crim. Justice Academy,2014 ME 82, ΒΆ H, 95 A.3d 612. Judicial review of an administrative agency's interpretation of its ...

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